4 candidates on 3 issues: How Utah's presidential choices view federalism, separation of powers and religious liberty
Posted November 6, 2016
In a year when voters face the two least popular presidential nominees in modern history, Utah finds itself in the unaccustomed position of relevance in a closely fought presidential election.
If polls are to be believed, Utah’s electoral votes are actually being contested by three candidates. Hillary Clinton and Donald Trump both face a stiff challenge from a local GOP rebel named Evan McMullin. And all three are in shouting distance of a win. Meanwhile, Libertarian Gary Johnson, who many thought would be a factor, has faded to low single digits.
While this has been the noisiest election in recent memory, it's also been disconcertingly light on substance. Here we take a quick look at four candidates' positions in three areas that help define the scope of government: the balance of power between the federal government and the states, the separation of powers between the executive branch and Congress, and religious liberty versus the claims of equality.
1. Federalism: the states vs. Washington
The federal government was once thought strictly limited to a set of "enumerated powers," with all other powers "reserved to the states" by the Tenth Amendment. Major cracks in those constraints occurred during the Great Depression and the civil rights era.
Today, the country is sharply divided on the balance of power between Washington and the states. Gallup reports that 55 percent of Americans favor more power in state governments. But 62 percent of Democrats favor concentrating power in the national government, while 56 percent of independents and 78 percent of Republicans would tip the balance to the states.
Where do the candidates stand on the scope and limits of federal power?
"We need to reimagine the relationship between the federal government and our metropolitan areas," Clinton told the U.S. Conference of Mayors in 2015. "Top-down, one-size-fits-all solutions rarely work."
Clinton often describes her approach as "flexible federalism," which she told the mayors "empowers and connects communities, leverages their unique advantages, adapts to changing circumstances." But Clinton's flexibility is pragmatic, experimental and problem-solving and is not based on formal constitutional limits. This is not surprising, given Gallup's finding, noted above, that Democrats generally favor concentrating power in Washington.
As a libertarian, Johnson opposes the war on drugs, but he advocates legalizing marijuana at the national level rather than returning that power to the states. In 2011, while running for president as a Republican, Johnson favored overturning Roe v. Wade, saying that doing so would return authority to the states. But in 2016, he supports upholding Roe v. Wade.
Johnson does support eliminating the Department of Education and returning education policy to the states. But his policy statements are surprisingly short on details on federalism.
McMullin favors traditional conservative limits on federal power. His website says he "believes in the wisdom of the Tenth Amendment, which reserves for state governments and for individuals all the powers that the Constitution doesn’t explicitly give to the federal government."
He also supports a constitutional amendment that would allow two-thirds of the states to veto any executive order or regulation, and he favors limiting federal mandates and regulations that impose costs on state governments.
Trump has frequently expressed interest in returning power to states, but he does not seem to have a consistent philosophical position.
Asked in a CNN town-hall meeting in Wisconsin to define the three most important roles of the federal government, he emphasized security against foreign threat or terror as the paramount role. But pressed to elaborate, he added health care and education, and then said "many things, housing, providing great neighborhoods. …"
“One of the things I’d do,” Trump said at a town hall meeting in September, “is I would do stop-and-frisk. I think you have to." Trump's advocacy of the controversial practice used by Mayors Giuliani and Bloomberg in New York to limit gang activity sparked an outcry on the left. But a few on the right also noted that local police policies lie far outside federal authority.
Similarly, last December Trump said he would use an executive order to mandate that cop killers face the death penalty. But 19 states currently have no death penalty. The only way he could do this would be to make a leap of executive authority.
2. Separation of powers: executive power
Both George W. Bush and Barack Obama expanded executive power by using executive orders and informal "interpretations" that effectively made law outside of normal legislative or regulatory constraints. Obama has been especially aggressive with the latter approach.
Bush issued executive orders to expand warrantless searches to fight terror, while Obama has used executive orders and memoranda to rewrite significant portions of immigration law, reinterpret the Clean Air Act to fight global warming, and order local schools to open restrooms to transgender students.
Obama's most widely noted order would have legalized up to 4 million immigrants had it not be blocked by the courts. He issued that order in 2014 after six years of repeatedly declaring that he lacked the constitutional authority to do so.
Where do the candidates come down on the use of executive power to break things loose when the president gets tired of waiting for Congress?
Clinton seems committed to expanding on Obama's already expansive use of executive orders and memoranda. With Republicans controlling at least the House, Bloomberg reports, ongoing policy stalemates would be an invitation for Clinton to wield her pen on everything from gun control to climate control and taxes on hedge fund managers.
Her website laments the courts' blocking of Obama's executive action on immigration and says she "won’t stop fighting until we see it through." If Congress fails to act, she will "enact a simple system for those with sympathetic cases" to legalize their immigration status. Obama's action, she argues, was "squarely within the president’s authority."
Johnson appears to be a pragmatist who would use expansive executive powers if he saw the need. He told Politico that he approved of Obama's immigration action as a "reasonable use" of executive authority and liked that it "challenged Congress to action." The Washington Post calls this position "one example of a departure from strict Libertarian orthodoxy on the separation of powers."
McMullin opposes expanded executive power and is critical of Obama's immigration executive order. He cites Obama’s executive order to creating global warming policy as executive overreach.
McMullin also sees executive overreach and separation of powers violations in how Obama has implemented the Affordable Care Act, asserting on his website that the president has “repeatedly made substantial changes to the program without congressional authorization. He suspended requirements, issued waivers and even appropriated federal dollars without permission from Congress."
Trump embraces Obama's expansive view of executive power. “I won’t refuse it," Trump said on "Meet the Press." "I’m going to do a lot of things.” Obama has "led the way, to be honest with you,” Trump said, adding that he would use the same tactics but to different ends.
Trump would, for example, use executive orders to make Mexico pay for a wall along the border to stop illegal immigration by rewriting existing money laundering statutes that were passed to fight terrorism, altering the law and using it to track and then block or tax wire transfers to Mexico, withholding a portion to pay for the wall.
Former House Speaker Newt Gingrich, the most prominent Trump surrogate and likely Cabinet appointee, is quite enthusiastic about executive orders, urging Trump to issue hundreds on his first day in office.
3. Religious liberty vs. nondiscrimination policy
One key collision today is the conflict between religious people seeking to "freely exercise" traditional beliefs as guaranteed by the First Amendment and the rights of others, notably gays and lesbians, to avoid discrimination in employment, housing or the marketplace, as protected by the 1964 Civil Rights Act.
Religious freedom also comes into play when professionals are forced to choose between practicing their profession and their beliefs, as when nurses are required to assist in an abortion, when counselors ask to refer gay clients to other providers, a family owned pharmacy is forced to sell abortifacient contraceptives, a photographer is required to tell the story of a gay wedding, or when legislators in California set out to require religious colleges to either conform on LGBT policy or deny state funding to their students.
Where do the three candidates stand on the claims of religious institutions and traditional believers, when set against both equality claims and government regulations?
In 2014, Hobby Lobby persuaded the Supreme Court that the Obama administration could not require the family-owned company to offer a handful of contraceptives it viewed as an abortion drug in its health insurance package. The retailer argued that the Religious Freedom Restoration Act of 1993, signed by President Bill Clinton, required the federal government to find a reasonable accommodation for their concerns.
Hillary Clinton described that decision as "deeply disturbing" and a "really bad, slippery slope." She also tweeted her opposition to similar claims by the Little Sisters of the Poor, the group of Catholic nuns who sought an exemption from the same policy.
In her Deseret News op ed, Clinton wrote that, "As Americans, we hold fast to the belief that everyone has the right to worship however he or she sees fit." The use of "a right to worship" as a substitute for the "free exercise" found in the Constitution raised fears among religious critics that she would like to limit religion to what goes on inside a church or a home, rather than allowing people to exercise their religious beliefs in public and in their professional lives.
Earlier this year, Johnson said "religious freedom, as a category, is a black hole." He has repeatedly said that the federal government should restrict all forms of discrimination, and would make no exceptions even for deeply held religious belief. Asked at a libertarian debate in March if a Jewish baker could be required to bake a Nazi-themed birthday cake, he responded, "That would be my contention, yes."
In August, Johnson sought to soften that stance in an op ed for the Deseret News. Praising Utah's compromise on the issue, he wrote that he "attempts at legislating religious exceptions to anti-discrimination laws with great sensitivity and care," he wrote.
In an interview with the Christian Post, McMullin says that the wider implications of the Supreme Court's gay marriage decision "mean that we need to take some steps to defend religious liberty." He adds that "religious liberty is under threat not just from that decision but from Obamacare and the decisions associated with that."
McMullin's religious freedom statement on his website argues that we should "recognize that religious diversity and robust pluralism are foundational sources of strength for our nation." Here, he is aiming at two birds with one stone. First, he is calling out Donald Trump for his suggestion that Muslims should be singled out or even banned from entering the country. Second, he is calling for a balance in the "free exercise" protection of the First Amendment. Real pluralism, he suggests, will require accommodating both Christians and Muslims in a secular world, and not just as mascots.
Trump's “go to” answer to any question on religious freedom is to cite his opposition to the Johnson Amendment, a 1960s era tax law that states that any nonprofit organization exempt from taxes must not engage in partisan politics or elections. That law does not prohibit churches from speaking on issues. Still, it has become something of a bête noire to politically active evangelical Christians, who would like to be able to mobilize voters in the pews.
Otherwise, Trump has surprisingly little to say on free exercise disputes. At a closed-door meeting with evangelical leaders in June, Trump was repeatedly asked about religious liberty conflicts, and each time he sidestepped the issue.
Trump's website is more clear and traditionally conservative. "The Little Sisters of the Poor, or any religious order for that matter, will always have their religious liberty protected on my watch and will not have to face bullying from the government because of their religious beliefs," it states.
Trump also promises to sign the First Amendment Defense Act authored by Utah Sen. Mike Lee, which would ensure exemptions for religious institutions, including schools and colleges.